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As Long as We Remember...

September 26, 2005

Advise and Consent

Edward Lulie III

In the last 75 years the nature of the United States Senate as an exclusive “club” has greatly changed. So, too, has the nature of the process for reviewing judicial nominees, particularly to the Supreme Court.

The left has grown accustomed to using the courts as a legislative tool, accomplishing by judicial rulings what could not be gained in Congress. Thus, in a world where Republicans rule all branches of government, the prospect of a having a solidly “Republican” Supreme Court fills the left with anger, frustration and dread.

The president makes judicial appointments and the Senate advises and “consents.” That is supposed to mean approval, with certain considerations. In the days when our Senate was mostly a club for wealthy white men, it was a process akin to getting admitted to an exclusive country club. That meant a decision as to “suitability,” something that large amounts of political capital or wealth did much to establish.

In the present case Appeals Circuit Court Judge John G. Roberts, Jr., looks to be easily confirmed, having danced well enough in committee to pass public scrutiny. The left, disgruntled and sullen over his refusal to be an easy target for abuse, is generally resigned to watching him be confirmed.

It is the next appointee that has them really worried. They fear that the next candidate may pass scrutiny as well but will form the basis of a new balance of power in the Supreme Court that leaves the concept of judicial legislation out in the cold. Their concern is that the Supreme Court might take a shape that undoes much of what they valued etched in law, not by Congress, but by judicial activism. Prayer in school? In God We Trust? Limits on the EPA?

I hope, with grave doubts that it will ever happen, for a Supreme Court that reins in the unchecked power of the federal government. I fear for a country where the federal government has become powerful in local law enforcement. To me the recent decision on eminent domain is just the tip of an iceberg, just one example of out of control federal power.

Republicans are generally of two minds on the subject: on one hand happy to use the tools of federal power because they can; and, on the other, dismayed because they can recall the abuses that power can bring when in the hands of activists.

Democrats fear the limitations of a Constitution that means what it says, not what judicial palm readers claim it “really” means.

This debate over judicial activism and constitutional construction is a hard thing for the general public to understand, in part, because our educational system is more committed to studying sociology than civics and history. Our media doesn’t engage it as a topic for widespread debate, far better for ratings to discuss gay marriage or global warming.

The real question isn’t who the next nominee will be. The question is: Will Democrats go to war to stop confirmation? It appears they have no chance to stop Judge Roberts; will they decide to go all out to obstruct the next nominee?

Since they don’t have enough votes to win, do Democrats try a filibuster? If they do, does the limit imposed of “extraordinary circumstances” come back to haunt them?

Democrats have lately consoled themselves with endless internal dialogues over George Bush. Why hasn’t he realized he failed? When will he admit defeat? This may spark smiles and debate at Starbucks or local blue state watering holes, but it is really just hot air. George Bush doesn’t have to run again. He is largely free to act in any fashion he sees fit.

The fact that the New York Times and Howard Dean hate him does not for a second cause him to lose sleep. Democrats wistfully declare that President Bush will have no legacy (mostly because nobody credits Bill Clinton with one).

Yet they are ignoring the Supreme Court justices he is about to appoint. They will be there long after Mr. Bush leaves office. That is what a legacy is all about – and something that has Senate Democrats greatly concerned.

In the next month or so we will see what “advise and consent” means in 2005; a gentlemanly debate over “credentials,” or a knock down vicious fight over politics?

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